A Local Authority v Mother & Ors

This judgment concerns the decision as to whether to proceed with the lay evidence in this case remotely or whether to adjourn the case having heard the medical evidence. I have heard five days of medical evidence remotely through the Zoom platform and, as is explained in more detail below, I adjourned the trial at that point to hear submissions as to whether the hearing should continue with evidence from the parents and other lay witnesses via Zoom. An issue then arose as to the Father’s mental health and, ultimately he asked for an adjournment on the grounds of ill-health rather than specifically the remote hearing aspect of the case. I will deal with that adjournment application later in the judgment.

The local authority (LA) has been represented by Mr Goodwin QC and Ms Bisbey, the Mother by Ms King QC and Mr Hayes, the Father by Mr Tughan QC and Mr Davies, and the Guardian by Mr Verdan QC and Ms Bradley.

The background to this matter is an application by the LA for a care order in respect of SX, a four year old child. In April 2019 his two month old sister, AX, died at home of unknown causes. When a post-mortem and subsequent investigations were carried out it was established that AX had sustained 65 fractures to various parts of her body including ribs and long bones, as well as a subdural haemorrhage, axonal injury to the brain and retinal haemorrhage. The local authority were granted an Interim Care Order and SX has been living with foster carers since then.

For reasons that are not relevant to this judgment there have been considerable delays in getting this matter to a full hearing. It was listed for a three week fact finding hearing commencing on 15 April 2020. Because of the delays in obtaining some of the forensic reports the LA decided not to seek findings in respect of cause of death but to proceed on the basis of the specific injuries shown in the medical evidence. The LA threshold document alleges that the injuries were inflicted by one or both of the parents and that each parent knew that the other had caused injury or was likely to have caused injury to AX. No other person is in the pool of alleged perpetrators and neither parent has suggested that any other person looked after AX for a period which would have allowed them to inflict the injuries.

Both parents have filed a number of statements and both deny inflicting the injuries. The Mother through Ms King has not disputed the medical evidence in respect of the injuries or that they were inflicted non-accidental injuries. Her position is that she did not cause the injuries and thus they can only have been caused by the Father. She says that she had no knowledge of AX having suffered any injuries. She alleges that she suffered domestic violence from the Father.

The Father does argue that the injuries were not non-accidental injuries. Mr Tughan has cross examined the medical witnesses to that effect.

The timetable of hearing was set for the medical witnesses to go first. I have heard evidence from Professor Al-Sarraj, Professor Mangham, Dr Marnerides, Dr Oates, Dr Fitzpatrick-Swallow and Dr Cartlidge. I heard that evidence with all parties and witnesses appearing via Zoom. In my perception those hearings, over 5 days, worked reasonably smoothly. There were some technical problems but all the days’ hearings went ahead with a limited need for breaks or gaps. On the first day both parents were

At the start of the hearing on Tuesday 21 April 2020 I indicated that I would consider the issue of whether the whole fact finding hearing could be completed remotely at the end of the medical evidence. It was subsequently agreed that I would hear submissions on that issue on the afternoon of Monday 27 April and then reserve any decision until 28 April given that the Court of Appeal was due to be giving a judgment on another case concerning remote hearings on the 28th April.

Through the course of the first week of the hearing all parties urged me to continue with the lay evidence remotely. Mr Tughan on behalf of the Father said that the Father was “desperate” to continue and to tell his side of the story. However, over the weekend the Father’s position changed. He informed his lawyers by email that he had gone to A&E on the night of 21/22 April feeling suicidal and that since then he had felt unable to participate in the hearing.

At the hearing on 27 April I permitted the Father to file a psychiatric report due to be prepared by Dr McEvedy on 29 April, both to consider his capacity to litigate, but also his mental state in terms of whether he could continue to participate in the hearing. I received Dr McEvedy’s report on the morning of 4 May. I am very grateful to Dr

It is Dr McEvedy’s opinion that the Father has capacity to litigate within the meaning of the Mental Capacity Act 2005. He understands the information that he is given, can consider and balance it, and can communicate his views and decision. On the basis of the report, I have no doubt the Father has the relevant capacity.

Importantly Dr McEvedy also says;

In terms of his emotional state, the Father records that he has been suffering from low mood and anxiety, has been having suicidal thoughts and has undertaken some selfharm, though this appears to be of a relatively low scale. Dr McEvedy records that it may be appropriate for the Father to be placed on some anti-anxiety medication, although it is important that this does not impede his ability to concentrate and give evidence. The Father records that he has been able to communicate with his lawyers, but has not felt able to participate in the hearing in the previous week. My understanding of what he said to Dr McEvedy was not that the Father was not capable of participating, in terms of the technology, but rather that he felt too emotionally stressed by participating at all.

Importantly, when Dr McEvedy asked the Father what measures could be taken to help him participate in the hearing given his emotional state, he said that it would help “enormously” to give evidence by video and Dr McEvedy endorsed this.

The Covid 19 pandemic has come upon the world, and the UK judicial system in particular, in a sudden, unexpected and entirely unplanned manner. Courts and users have had to adapt very quickly to a totally unexpected situation. There have had to be extremely difficult judgements made about the importance of proceeding with cases in order to achieve the welfare of children whilst protecting the fair trial and broader interests of the parties and witnesses.

Two months ago it would have been almost inconceivable that a hearing such as this would continue entirely remotely. However, there would be significant disadvantages to many children if all such cases were simply adjourned. This is particularly the case where it is becoming increasingly apparent that the impact of Covid 19 is likely to continue for many months, and this may make it very difficult to hold some of these cases in a normal court setting for a significant period of time.

The first reported case dealing with the approach to take in deciding whether to proceed with a hearing in a complex Family Court case is Re P (A Child Remote Hearing) 2020 EWFC 32. In that case the President was considering a case involving a 7 year old child whose mother was alleged to have caused harm to the child by fabricated or induced illness (FII). It had been set down for a 15 day hearing. The child had been under an interim care order for 11 months. Initially all parties had accepted the need for remote hearing [8] in the light of the advice produced by MacDonald J on remote hearings.

The President then set out the arrangements that had been made for the Mother to engage with the hearing. She was alone at home and it was intended that internet access would be arranged. It is of some relevance that her leading counsel had only been relatively recently instructed. At [11] the President referred to the national situation and said;

“It is a type of hearing which, certainly at first blush, seemed to be well outside the categories of hearing which could be contemplated as being appropriate for remote hearings before the Family Court. I make that observation in the narrow context of this being an allegation of FII. That category of case is a particular form of child abuse which requires exquisite sensitivity and skill on the part of the court. Dr Evans, the paediatrician instructed as an expert witness in this case, at p.E31 of the bundle, describes this as”

The position of the parties in Re P was that the local authority and the Guardian wished to proceed, in particular because of the impact of further delay on the child. The Father supported that position. The Mother’s counsel argued that the case must be adjourned. She did that largely on the basis that the Mother was not well enough to proceed. Given the nature of the case this was obviously a particularly problematic situation. The President at [20] referred to the possibility in some cases of the parent going to another place such as local authority offices to give evidence. However, this was not an option given that the Mother believed she had Covid 19.

The President then said;

The Court of Appeal has now issued two judgments relating to Family Court cases being heard remotely, Re A (Children) (Remote Hearing : Care and Placement Orders) [2020] EWCA Civ 583 and Re B (Children) (Remote Hearing: Care and PlacementOrders) 2020 EWCA Civ 584.

At [9] the Court of Appeal said;

One important factor in a decision whether to proceed, particularly in a fact finding case, is the question of whether the judge will be in a less good position to judge whether or not the witnesses are telling the truth if the case is conducted remotely. This was clearly an issue of particular concern to the President in Re P at [26] where he refers to

Mr Goodwin and Mr Verdan also referred me to the fact that it is by now fairly common in Family and Criminal courts for lay witnesses of fact to give evidence remotely by video link where those witnesses are considered to be vulnerable. The procedure for doing so is dealt with extensively in PD3AA. It therefore must follow that the giving of evidence in this way does not undermine the fairness of the process either for the individuals concerned or other parties. I do however inject a note of caution here. If it were a case that a vulnerable witness were likely to be subject to complex cross examination, perhaps with references to a large number of documents, it is highly likely that they would have the assistance of an intermediary to assist them in managing the process. Therefore, the fact that evidence is given remotely is not itself sufficient to necessarily protect that witness.

There is also a balance to be struck. One of the reasons that vulnerable witnesses often give evidence remotely is to protect them from the stresses of the courtroom. It may therefore be that a compromise is made for that category of witness, in order to balance fair process with the interest of the individual. However, as Mr Goodwin argued, it may also be the case that the vulnerable witness is more likely to give truthful and complete evidence if allowed to give it remotely, rather than in the witness box. So the benefit is not simply to the witness, but also potentially to the judicial process.

Mr Tughan applied to adjourn the case on the basis of the Father’s mental state. He accepted that the Father has litigation capacity. However, he says that the Father is suffering from low mood and, as Dr McEvedy has said, does on his self-reporting qualify as suffering from a major depressive episode. He said that the Father sought an adjournment so that he could “get himself right”. However, no time period was put on the period of the adjournment sought. Mr Tughan stressed that the adjournment was not sought on the basis of the hearing proceeding remotely, and accepted Dr McEvedy’s report that the Father would prefer to give evidence remotely than in court.

I start by considering my general approach to whether to proceed, before considering the Re A factors. Having considered the matter closely, my own view is that is not possible to say as a generality whether it is easier to tell whether a witness is telling the truth in court rather than remotely. It is clear from Re A that the Court of Appeal is not saying that all fact finding cases should be adjourned because fact finding is an exercise which it is not appropriate to undertake remotely. I agree with Leggatt LJ that demeanour will often not be a good guide to truthfulness. Some people are much better at lying than others and that will be no different whether they do so remotely or in court. Certainly, in court the demeanour of a witness, or anyone else in court, will often be more obvious to the judge, but that does not mean it will be more illuminating.

I was concerned that a witness might be more likely to tell the truth if they are in the witness box and feel the pressure of the courtroom, but having heard Mr Goodwin and

For these reasons I do not think that it is possible to say as a generality that a remote hearing is less good at getting to the truth than one in a courtroom. I am aware that the Nuffield Foundation are currently carrying out research into remote hearings and it may be that this will cast more light on this topic. However, I do not feel it is appropriate to adjourn for this research to be produced. I would be very surprised if it was sufficiently definitive as to give one correct course.

In terms of deciding whether a fair hearing can go ahead, I will go through the various factors set out in Re A at [9];

Firstly, the importance and nature of the issue to be determined. This is a final fact finding hearing and the subject matter could not be more important both in terms of the findings that I am being asked to make in respect of both parents; the long terms implications of those findings for the parents; and most importantly the impact those findings are likely to have on SX. However, the fact that this case is of the utmost gravity does not mean that it is in a category of case that cannot go on remotely. It is clear from Re A that in every case there is an individual decision to be made, the importance and nature of the issue is but one factor.

Secondly, the need for urgency. On the facts of this case that is a complicated factor. SX is four years old and is due to start school in September. It is of the utmost importance to him that the next steps for his future be determined as soon as possible and it would be highly beneficial if he was settled somewhere, whether back with his parents or in a placement, when he starts school. However, on the other hand, the need for urgency will arise in many, if not most, care proceedings concerning children. SX might be said to be at a particularly crucial age, but one could probably put forward a serious argument on urgency in most Children Act proceedings. I am conscious that in both Re A and Re B the first instance judges considered the cases to be urgent, and in both cases there plainly was some urgency.

In deciding what weight to give urgency in this case I have closely in mind that it is particularly important for SX to be settled at the point he starts school. It has already been a year since he was placed in foster care and after the fact finding hearing, if I make any of the findings sought, there will need to be a welfare hearing which will further delay any final decision.

If the case is adjourned at this point then it will be by no means straightforward for it to be re-listed quickly. This again is a factor which is going to arise in a very large proportion of the cases being adjourned because of Covid 19. It is unfortunately inevitable that there is going to be a significant backlog of cases in the Family courts, quite apart from the new cases arising.

One factor that I view as particularly important is the position of the Mother. She has asthma and takes medication for it. It is not possible for me to assess how serious her asthma is but she is on prescription medication and I am told she has only been out of

There is also the additional factor of availability. If the case is adjourned it will require another 6 days of hearing time. Although it might be possible to put this in the list before August that is not going to be straightforward.

In those circumstances I think it is reasonable to assume that if I do adjourn the case I may well be adjourning it for many months.

Thirdly, is the question of legal representation. All parties in this case are represented by highly experienced and highly competent QCs. I have not the slightest doubt that the parents are getting the best possible advice and that their interests will be fully protected at all times.

Fourthly, is the ability of the parents to engage with the proceedings. Both parents are native English speakers, neither has any language or communication problems. There is no suggestion that either is of anything other than normal intelligence. The Mother has been listening and watching each day of evidence. I understand that she has access to two screens, although I think one is her phone, but she has been able to find documents in the electronic bundle. The evidence has at times been complex and must have been emotionally very upsetting for her. I am told by Ms King that she has followed the evidence, has been able to give instructions and has felt fully engaged with the hearing.

The position of the Father is more complicated. I was told on day one that he had listened to the evidence and had been able to follow it. I believe initially that he only had access to the hearing via a phone but he had been able to borrow a computer. I made clear that I would not proceed if the parents could only follow proceedings via a phone. The hearing is too lengthy and too complex for that to be an appropriate course.

Fifthly, it is obvious from everything I have said above that this is not a case proceeding on submissions alone.

Sixthly, the issue now involves lay evidence of fact. That evidence is strongly contested and both parents will be subject to cross examination from three QCs. The impact of the nature of the evidence on the decision as to whether a remote hearing is appropriate is perhaps the most complicated element of the assessment. It is in my view relatively straightforward to proceed remotely with professional evidence, here the medical evidence. It is very common to hear such evidence via video link in court. I note here that the technology in the courts, certainly in the Royal Courts of Justice, is less high quality and less reliable than my experience of proceeding with 5 days of remote evidence, by Zoom in this case. As long as the lay parties could follow the evidence, which they could in this case, I was entirely satisfied that it was fair to all concerned and met principles of natural justice to proceed with the professional evidence.

In respect of the lay evidence there are a number of different factors. The first and most important must be whether it is just to the parties to proceed with them giving their evidence remotely. They must be able to follow the questions and be able to give their best in the answers. If the technology works, and they are in a position to understand the documents, then in principle a remote hearing is capable of being fair. As Mr Goodwin and Mr Verdan have pointed out, vulnerable witnesses routinely give evidence remotely in the family and criminal courts. Subject to all the protection in PD3AA, the assumption must be that such a process is capable of being fair and meets the requirements of Article 6. A judge will have to be astute in a remote hearing to ensure the witness is following the question and where appropriate has the relevant document. It is easier to do this in a live hearing because one can see more easily what the witness has in front of them, and sometimes tell by their body language if they are completely lost. However, it is perfectly possible with a little sensitivity to do the same task remotely.

On the facts of this case I have no reason to doubt that the Mother will be able to follow the questions. I would necessarily keep the matter under close review and would stop proceedings if I felt it was becoming unfair.

I was concerned about whether the Father would be able to follow references to documents in cross examination. However, it has already been agreed that all documentary references will be read out to him. I note that the documents in this case are largely text messages and surveillance transcripts, and the references are likely to be fairly limited. I have ordered that a schedule of references should be prepared so that it is possible to know what documents are to be referred to. This is not a commercial type case with extensive relevant documents.

Seventhly, the length of the hearing. This hearing was listed for nearly 15 days, although in normal circumstances it would not have needed to take that long. The Mother and Father are both likely to be giving evidence for at least a day. If they give evidence remotely it will undoubtedly be necessary to give a number of breaks. This will be a gruelling process, and I have little doubt that they will both find it difficult. It is important however to bear in mind that parents being accused of very seriously harming their child are likely to find giving evidence in the courtroom also intensely gruelling. My concerns in this regard divide into two parts. Firstly, whether the process would be fair, in terms of seeing the documents, understanding the questions and having breaks when needed. In this case I have reached the conclusion, for the reasons set out above, that there can be a fair hearing. Secondly is the issue of whether the psychological impact of giving evidence can be properly managed in a remote hearing. For a parent giving evidence about severe injury to their child, particularly where she has ultimately died, must be an extraordinarily upsetting experience whatever the cause of the injury. I was very concerned about the parents potentially not having support if giving evidence remotely, particularly during a time of lockdown. I would describe this

Finally, on this factor, I do note the Court of Appeal’s concern in Re A and Re B about the increased strain placed on the court by remote as opposed to courtroom hearings. There is an intensity to a remote hearing and the concentration on a close screen which is different from sitting in a courtroom. It is necessary to be conscious of this and again take breaks as needed. However, I do not consider the position of the judge in a case such as this, as being as stressful as that of the Judge in Re B who had to face some 10 hours of different hearings, and a very urgent case with multiple late papers. I have had the luxury of considerable time to prepare, as well as excellent counsel.

Eighthly, the hearing is being conducted via Zoom. We have had five days of evidence to test the technology and so far it has worked reasonably smoothly. All participants have largely retained connection and the quality of video and sound has been very good. It is easy to forget that courtroom hearings have their own logistical problems including the exigencies of public transport, the challenges of poor heating systems and uncomfortable courts. One advantage of Zoom is the facility for private breakout rooms so it is easy for the parties to speak to their legal advisors during the hearing in a way roughly comparable to being able to give instructions whilst sitting behind a solicitor or going into a conference room. In my judgement the technology itself has not, at least so far, impeded a fair trial.

It is much more difficult for the judge to watch the reactions of other witnesses to the evidence. Although inevitably as a judge one does do that, I am not sure it is of much forensic value. So although this is a disadvantage of the remote hearing, I do not consider that to be a major issue.

Overall, I consider the technology to be capable of providing a satisfactory hearing.

Ninth, is the closely aligned issue of the ability of the court and the participants to manage the technology. The court, so far, has managed the technology to an acceptable level. There is an overly large electronic bundle (over 5000 pages), but all parties have managed to find the relevant pages surprisingly easily, largely thanks to the hard work of counsel, including the juniors. The ability of the parents to manage the technology whilst giving evidence has not yet been fully tested. The only way to deal with this is to be astute to the potential for difficulties and to be prepared to review the situation as the hearing continues.

Tenthly, is whether there are any safe alternatives that would allow some parts of the evidence to be heard in court. As I have indicated above this was my initial preferred approach. However, the fact that the mother has asthma and has indicated her unwillingness to come to court, even with precautions in place, makes this a difficult

Taking all these factors into consideration, I have come to the conclusion that it is appropriate to continue with this case remotely and not to adjourn by reason either of the remote hearing or of the Father’s mental state. I have carefully considered all the Re A factors set out above. To summarise the position, the technology has been proven to work in this case and I am confident that the Mother can use it effectively. The Father has the technology available to him, and on the day that he was in the hearing he seemed to cope with it fine. I will keep this matter under very careful review. In terms of managing documents, it has already been agreed that all references will be read to the Father.

In terms of the Father’s mental state and the technology, it is important that the Father has expressly said that he wants to give evidence remotely and this will decrease the stress on him. Therefore, the remote nature of the hearing is not the impediment to the Father’s participation.

There is serious detriment to SX from further delay. This is not an overriding factor but it is an important one. Given the Mother’s asthma, if I adjourn to have a court based hearing it is wholly unclear how long I might have to adjourn for, and it could be many months.

I am extremely conscious of the gravity of the case but in my view, taking the facts of this particular case into account, this is a case where it is appropriate to proceed remotely.

I turn to the separate, though related, issue of whether or not to adjourn by reason of the

I appreciate the Father will find giving evidence stressful, and he is suffering from stress and low mood now. Most parents in the situation these parties find themselves in would find the prospect of giving evidence and being cross examined extremely stressful. That alone cannot be a reason for not going ahead with a trial such as this. Also, there is no guarantee, indeed it is quite likely, that if I were to adjourn and the trial resumed in some months, the Father would again find the situation highly stressful. Adjourning this case is not going to make the causes of the stress and probably the low mood disappear.

For these reasons, the Father’s ill-health is not in my view a good ground to adjourn this matter. I will however very carefully monitor both parents’ ability to participate fully in the hearing and to give their evidence to the best of their ability. The fact that I have decided to go ahead today, starting lay evidence tomorrow, does not mean that I will not continually revisit the issue of the fairness of the proceedings.